HON’BVLE MR. JUSTICE S.RAVINDRA BHAT, J.

1. The plaintiff in this Suit seeks declaration as to Will dated 06.09.1995, which he disputes, as not legal and binding and that it contravenes Section-114 of the Indian Succession Act; he also claims that in the event of declaration not being granted, the Court should hold that the said Will is void and not binding on him. He further seeks a decree for partition in respect of the estate of Mrs. Lajja Sareen (hereafter called “the testatrix”) regarding the property No.N-84, Panchsheel Park (hereafter referred to as “suit property”), movable/immovable assets fully described in the Suit, for the appointment of a Local Commissioner to suggest the mode of partition and take consequential steps towards drawing a final decree.

2. The undisputed facts that may be gathered from the pleadings are that the plaintiff (hereafter referred to as ‘Sarvjeet’), Defendant No.1 (hereafter referred to as ‘Ritu’) and defendant No.2 (hereafter referred to as ‘Beena’) are brother and sisters respectively. They are the surviving children of the testatrix, who owned the suit property. The testatrix expired on 17.12.1995, leaving behind the suit property, cash and fixed deposits in the Central Bank of India and some units of the Unit Trust of India. The suit describes a Will dated 29.04.1986 in terms of which the testatrix provided that the suit properties were to vest in her children whereby Sarvjeet and Ritu were to jointly own the ground floor of the property; the first floor was to be inherited by Beena. The suit alleges that restrictions, on the disposition of the property or the shares of each heir were provided in this Will of 1986. According to such restrictions, no heir could sell or transfer his or her share without first offering it to the other two and that in the event of transfer of such share to one or the other heir, it was to be at half the fair market value.

3. The suit alleges that the testatrix had a history of medical problems which resulted in her physical and mental limitations. It is contended that her health started to deteriorate in 1988-89. She began to lose her balance and had an uneven gait difficulty in coordination and no control of her bodily functions. She suffered from short term memory loss and was diagnosed as having a blockage in the base of the neck. The Suit states that the testatrix underwent a surgery in 1989 at the All India Institute of Medical Sciences (AIIMS) where a shunt was installed to relieve pressure in the brain. It is alleged that the blockage in the shunt was diagnosed and corrected in early 1990 and later her physical and mental capabilities continued to deteriorate. The suit alleges that the testatrix’s movements became restricted in December, 1993 – January, 1994 and she spent more time in bed and started to forget things and could not recognize people. The plaintiff also alleges that the testatrix fainted in April, 1995 resulting in her admission in the Sir Ganga Ram Hospital and blood transfusion to stabilize her condition. It is claimed that at that time doctors diagnosed that she had cancer in the stomach; the testatrix also suffered from depression. The suit states that by August, 1995, her condition seriously deteriorated and she underwent a second transfusion. It is stated that in October, 1995, the testatrix went through a dehydration shock and between October and December, 1995, she went into semi-comma a number of times. Sarvjeet alleges in the suit that testatrix had become extremely weak at the time of her death and was incapable of doing anything and was totally dependant on Ritu and her husband (the third defendant – here after referred to as ‘Menon’). In the light of these allegations, the suit states that the testatrix was not of a sound disposing mind practically since April, 1995 when she had collapsed. It is contended that after death of the testatrix, Sarvjeet-who resides in United States of America (USA) came to Delhi to at